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1 ITL Review 1 (2016)

Full Issue

ARTICLES

The Dune case is one of the few decisions in Belgium addressing the contractual liability of classification societies. The ruling is in line with conclusions of older cases dealing with the liability of classification societies towards shipowners. The Antwerp Court of Appeal concluded that the classification society acted negligently by issuing the class certificate without first completing the necessary preparatory works. The decision affirmed that classification societies are obliged to survey vessels to the best of their abilities and apply the normally required diligence and care when performing the survey (obligation de moyen), without necessarily having to achieve a particular anticipated result (obligation de résultat). The Court eventually held that the repair and maintenance costs to make the Dune seaworthy did not constitute the plaintiffs’ contractual damage. The Court, however, concluded that it was beyond reasonable doubt that the plaintiffs suffered pecuniary loss because of the classification society’s negligence. Therefore, the recoverable loss was estimated ex aequo et bono at €35.000. The case of the Dune also shows that classification societies do not take over the shipowner’s responsibility to provide a seaworthy vessel. The shipowner is fully responsible to ensure that the vessel remains seaworthy between all periodical class surveys. A class certificate is an indication of the vessel’s state at the moment that the survey is completed, but cannot be used by the shipowner as an absolute proof of the vessel’s seaworthiness.

Third parties protection has been an extensive issue for the shipping community over the last century. Although this problem has been solved to some extent in practice by various means of circumvention created by the industry, it remains conceptually obscure. A substantial obstacle with third party protection is the classic perspective of contract law, which considers a contract to be a bilateral promise between the parties. However, it can be argued that in the modern factual context of the shipping industry, where third parties are the pivots of the business, the reliance perspective and a particular aspect of reliance perspective related to third parties could be an alternative way of looking at the issue de lege ferenda.

BOOK REVIEW

Marc A. Huybrechts – Olena Bokareva – Multi-modal Transportation under the Rotterdam Rules: Legal Implications for European Carriage of Goods and the Quest for Uniformity